The High Court refused two declarations sought by Martin Stapleton in a costs motion connected to a challenge against planning permission for 131 build-to-rent apartments in Clontarf. It also refused Aarhus-related relief concerning a challenge to the validity of primary legislation, while saying it would in principle refer a separate question about ministerial guidelines to the Court of Justice of the European Union (CJEU).
Mr Justice Humphreys delivered the judgment on 22 June 2022. The underlying judicial review challenges An Bord Pleanála’s 23 December 2021 decision to grant permission for a strategic housing development at Redcourt, Seafield Road, Dublin 3. The planning challenge itself was not decided in this judgment; the motion concerned costs protection against the State.
The applicant argued that costs protections under section 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011 applied. The judge refused both declarations. He said a challenge alleging that ministerial guidelines were outside statutory powers, or that the empowering law was invalid, was not a proceeding under an EU directive on habitats or public participation. He also concluded that an action seeking to invalidate a statutory requirement was not one to enforce compliance with such a requirement under the 2011 Act. He added that the claimed environmental harm did not meet that Act’s meaning of damage to the environment.
The judge also refused a declaration that the Aarhus Convention’s costs obligation covered the challenge to the validity of primary legislation, and refused relief based on alleged State failure to transpose Aarhus in that respect. He reasoned that the Convention’s relevant access-to-justice provisions did not extend to challenges to legislation.
A different issue arose over the challenge to ministerial guidelines made under primary legislation. The judge said a question arose about whether such a challenge could fall within the Aarhus interpretative obligation where environmental law was at issue. He considered an answer necessary and not already clear from EU law, and said it was appropriate to refer the question to the CJEU. The order states that he would refer it in principle; it did not record a completed reference. The parties, including any notice parties wishing to participate, were directed to make simultaneous submissions within two weeks, with the case listed for mention on 11 July 2022 to confirm delivery.
The ruling addressed only the costs motion against the State. It did not determine the underlying planning challenge or the applicant’s other pleaded grounds.